Politicians must keep their hands off disciplinary decision-making processes

Even the staunchest defender of the autonomy of sports vis-à-vis political influence, IOC President Thomas Bach, recently had to admit that sports is inextricably linked with politics and business, but that one must ensure that these interests are not influencing sports in an improper way.

And there is one area where I hope it is generally agreed that politicians must keep their hands off completely, and that it is in the decision-making processes for disciplinary matters, whether it involves ethical problems and corruption or transgression more directly related to the sports competition.

The concept of independent Tribunals
This is why most international, continental and national federations find it natural or necessary to establish independent tribunals and other mechanisms for the handling of such processes. This is intended to ensure that they are completely kept out of the hands of the politicians and are not influenced by the typical political considerations required for maintaining power and friendships etc. People running federations may find it frustrating or scary to give up this kind of control, but for the most part they appreciate that such arrangements for totally independent and detached decision-making are partly for their own protection.

Of course, establishing such mechanisms may be a clear imposition for many small federations, where furthermore the need for disciplinary processes is very rare, because it involves the availability of a competent group of people who are not involved in the bureaucratic structure of the federation. And it also requires a very solid regulatory framework even if the risk is limited that it will be put to use. So such federations tend to prefer to go with a ‘minimalist’ approach. 

Federations where the competitions which they supervise are relatively infrequent, perhaps mainly taking the form of a World Championship, may find that most of their cases involve directly completion-related matters which urgently need to be resolved during the course of the competition, typically by an ad hoc disciplinary committee and/or a jury. But federations with a much more continuous or complex competition structure, such as UEFA in football or EHF in handball, require a more solid and multi-tiered system for disciplinary matters, which may come up on a very frequent basis.

An illustration of how an independent decision-making process can work
During my 30 years of involvement with the PanAmerican Team Handball Federation, including a long period as the President of the PATHF Referee Commission, I had never come across a situation where a need for a Disciplinary Tribunal emerged. All the disciplinary matters involved situations such as excessive violence or seriously unsportsmanlike during a championship game, something which was routinely  handled as part of the tournament management.

Nevertheless, when I was approached by the PATHF leadership some years ago about first improving a very flimsy regulation for disciplinary matters and then to set up a Tribunal for Disciplinary and Ethics Matter and to become its initial President, I felt compelled to help out. I did not really expect that the Tribunal would be put to work in the foreseeable future, but for the reasons discussed above, I felt that the decision to establish an independent Tribunal deserved my support.

As it turned out, however, it did not take long for the Tribunal to receive its first case, which involved the allegation that a national federation had used over-age players in a continental junior championship. The matter has already received attention by Play the Game (Article: Severe sanctions for age fraud in handball and Article: Handball federation lifts ban on national team), so I will only provide a brief summary here. The specific case before the Tribunal involved only two players, and for both of them the investigation provided clear evidence. Moreover, one of them gave a full confession and explanation of the methods used, which confirmed the suspicions of systemic and widespread fraud, with the full knowledge of the Federation management and a vast number of players.

The Tribunal decided to suspend the two players, although with a lesser punishment for the player who collaborated, and gave a lengthy suspension to the Federation official who had been the key instigator. But given the systemic nature and the need for punishment that would affect the federation as a whole, the Tribunal also expressed a suspension against the national teams in continental and regional competition, in keeping with international practices. Throughout this process, the Tribunal operated completely independently, merely keeping the PATHF management informed of its progress.

How the good intentions can be undermined through improper political intervention
While nobody in PATHF or in the country in question seemed to feel sorry for the two players or for the key official, the team punishment soon started to cause concerns: The Olympic Committee of the federation involved was concerned about wasted investments; the PATHF leaders had personal and political relations to worry about; and the International Handball Federation (IHF) clearly wanted to sweep things under the rug, perhaps to ensure that no queries from the IOC would be forthcoming.

An appeal of the Tribunal’s verdict to CAS, the Court of Arbitration for Sports, which was provided for in the Tribunal’s regulations, would then have seemed a normal recourse. But this was clearly not a solution which any of the three parties relished, as CAS could have used its unique provision for a ‘de novo’ hearing to examine the complete scope of the fraud, on the basis of confessions and evidence which had come up after the Tribunal made its decision. In other words, the result could hypothetically have been an increase in the punishment instead of a possible reduction. 

So soon the PATHF leaders awkwardly started ‘leaning on’ the Tribunal, perhaps in the hope of a revised decision, something which would have been completely illegal. And as this was not feasible, they began to make it clear that they would use the upcoming PATHF Congress to obtain a vote to set aside the Tribunal decision. This was based on the flawed logic that the Congress is the highest organ in the PATHF and therefore somehow superior also to the Tribunal, whereas in fact the Tribunal is totally independent from the political structure of the PATHF. When this eventually became clear, the PATHF instead decided to suddenly ask the Congress to establish an internal appeals body.

This in itself is just fine, but, the Congress was also asked to let the appeals body intervene retroactively, even though a different appeals process was in place when the Tribunal made its decision.  Moreover, in addition to the awareness of what outcome the PATHF leaders wanted to see, no effort was made to ensure a fully independent membership on the appeals body. Instead, the PATHF Secretary General and one other Council member were among those nominated.  

In a split decision by the appeals body, with the ‘less than independent members’ being part of the majority, the team punishment was eliminated. And quite remarkably, considering that there was no further investigation or new evidence, the appeals body took upon itself to increase by 50 percent the suspension for the federation official. The impression is that the appeals body did not really act as a normal appeals instance but simply felt free to replace the decision of the Tribunal with its own subjective judgment. It should be noted that no regulations had been established for the operations of the appeals body!

Some conclusions from this case
It is somewhat ironic that this case shows very nicely why the strong temptations to apply political considerations make it so important to have a separate and totally independent process in place, and that PATHF initially made a wise decision to establish a Disciplinary Tribunal. Yet, when the pressures subsequently became too strong, the framework was not firm enough to avoid having the good intentions undermined. Similarly, the establishment of an internal appeals body could hypothetically have been useful and appropriate, but the ‘ulterior motives’ prevented PATHF from giving this body a proper regulatory framework, so it ended up being misused.

As regards the first part, I could possibly accuse myself of having been too optimistic. I took the intention of wanting a truly independent Tribunal too much at face value. This means that the emphasis of the regulations for the Tribunal was on the internal functioning, with a solid structure, transparent operations, full adherence to legal principles, and a strong respect for the necessity of offering due process to anyone being accused. But the external aspects, or the framework, did not have the same clarity. For instance, it was not explicitly established in the PATHF By-Laws that the Congress and the Executive do not have any role in the decision-making process.

Similarly, either carelessly or intentionally on the part of the PATHF Executive, the proposal to the Congress for a new appeals body was not accompanied by an adequate set of regulations for its operations and its prerogatives. Even worse, the provisions for the membership of the appeals body explicitly created a conflict of interest and removed any notion of independence, by not excluding PATHF Executive members and other senior officials from the PATHF structure as members of the body. 

Bottom line: yes, Disciplinary Tribunals are desirable, but they can be rendered useless unless they are given full regulatory protection for their independence.  And internal appeals mechanisms can be useful and appropriate, but only if they are established with the same rigor as the Tribunals in terms of membership, operations and true independence. Having entities which de facto remain under the control of the Executive function is to make a mockery of the entire concept.